NFIB Sebelius Roberts

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Here, the Government claims that the Medicaid expan-
sion is properly viewed merely as a modification of the ex-
isting program because the States agreed that Congress
could change the terms of Medicaid when they signed on
in the first place. The Government observes that the
Social Security Act, which includes the original Medicaid
provisions, contains a clause expressly reserving “”[t]he
right to alter, amend, or repeal any provision”” of that
statute. 42 U. S. C. §1304.  So it does.  But “”if Congress
intends to impose a condition on the grant of federal mon-
eys, it must do so unambiguously.””  Pennhurst, 451 U. S.,
at 17. A State confronted with statutory language reserv-
ing the right to “”alter”” or ““amend”” the pertinent provisions
of the Social Security Act might reasonably assume that
Congress was entitled to make adjustments to the Medi-
caid program as it developed.  Congress has in fact done
so, sometimes conditioning only the new funding, other
times both old and new. See, e.g., Social Security Amend-
ments of 1972, 86 Stat. 1381-–1382, 1465 (extending Med-
icaid eligibility, but partly conditioning only the new
funding); Omnibus Budget Reconciliation Act of 1990,
§4601, 104 Stat. 1388-–166 (extending eligibility, and
conditioning old and new funds).

 The Medicaid expansion, however, accomplishes a shift
in kind, not merely degree.  The original program was de-
signed to cover medical services for four particular cat-
egories of the needy: the disabled, the blind, the elderly,
and needy families with dependent children.  See 42
U. S. C. §1396a(a)(10).  Previous amendments to Medicaid
eligibility merely altered and expanded the boundaries of
these categories.  Under the Affordable Care Act, Medicaid
is transformed into a program to meet the health care
needs of the entire nonelderly population with income
below 133 percent of the poverty level.  It is no longer a
program to care for the neediest among us, but rather an
element of a comprehensive national plan to provide uni-

54

versal health insurance coverage.14

Indeed, the manner in which the expansion is struc-
tured indicates that while Congress may have styled the
expansion a mere alteration of existing Medicaid, it recog-
nized it was enlisting the States in a new health care
program. Congress created a separate funding provision
to cover the costs of providing services to any person
made newly eligible by the expansion.  While Congress pays
50 to 83 percent of the costs of covering individuals cur-
rently enrolled in Medicaid, §1396d(b), once the expansion is
fully implemented Congress will pay 90 percent of the
costs for newly eligible persons, §1396d(y)(1). The condi-
tions on use of the different funds are also distinct.  Con-
gress mandated that newly eligible persons receive a level
of coverage that is less comprehensive than the traditional
Medicaid benefit package. §1396a(k)(1); see Brief for
United States 9.

  As we have explained, “”[t]hough Congress’’ power to
legislate under the spending power is broad, it does not
include surprising participating States with postac-
ceptance or ‘’retroactive’’ conditions.””  Pennhurst, supra, at
25. A State could hardly anticipate that Congress’’s reser-
vation of the right to “”alter”” or “”amend”” the Medicaid
program included the power to transform it so dramatically.

JUSTICE  GINSBURG claims that in fact this expansion is
—————— ————————–
14  JUSTICE GINSBURG suggests that the States can have no objection to
the Medicaid expansion, because “”Congress could have repealed Medi-
caid [and,] [t]hereafter, . . . could have enacted Medicaid II, a new
program combining the pre-2010 coverage with the expanded coverage
required by the ACA.””   Post, at 51; see also post, at 38.  But it would
certainly not be that easy.  Practical constraints would plainly inhibit,
if not preclude, the Federal Government from repealing the existing
program and putting every feature of Medicaid on the table for political
reconsideration.  Such a massive undertaking would hardly be ““ritual-
istic.””  Ibid.   The same is true of JUSTICE  GINSBURG’s suggestion that
Congress could establish Medicaid as an exclusively federal program.
Post, at 44.